republic of kenya - kenya law...

George Gitau Wainaina v Republic [2008]eKLR

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REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL ‘REVISION’ NO.68 OF 2003

IN THE MATTER OF KIBERA CHIEF MAGISTRATE’S COURT CRIMINAL CASE

NO.4445 OF 2002

AND

IN THE MATTER OF THE CONSTITUTION

AND

IN THE MATTER OF A CONSTITUTIONAL REFERENCE

UNDER SECTION 67 (1) OF THE CONSTITUTION

BETWEEN

GEORGE GITAU WAINAINA................................................... APPLICANT

VE RSUS

ATTORNEY GENERAL....................................................... RESPONDENT

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RULING

There is before us a Constitutional Reference from the learned Senior Resident

Magistrate, Kibera (Ms Siganga) to the High Court under section 67(1) of The

Constitution of Kenya (‘the Constitution’) following an application by the applicant

for such reference to be made to the High Court for it to address and determine

several questions as to the interpretation of the Constitution. The questions were said

to involve substantial questions of law revolving around an attempt by the Attorney –

General to enter a Nolle Prosequi in the above Magistrates court case after the

accused therein, who is now the applicant, had embarked upon his defence. Initially

5 Constitutional Questions were framed on 13.10.03 by counsel for the applicant

herein. However, on 06.10.05 applicant’s counsel filed a revised and expanded

version of the Constitutional Questions for determination, which Constitutional

Questions now number 7 as follows:-

1. Whether Respondent should give reasons for attempting/seeking to enter

Nolle Prosequi in Kibera Chief Magistrates Criminal Case No.4445 of 2002.

2. If the answer to 1 above is in the affirmative, whether the said reasons

are valid reasons constituting a proper exercise of powers of the Respondent

donated by section 26 (3) of the Constitution and section 82 of the Criminal

Procedure Code, Cap.75 to enter a Nolle Prosequi.

3. Whether in the circumstances of this case and considering the stage at

which these proceedings are, a Nolle Prosequi does or does not constitute an

abuse of due process.

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4. Whether in seeking to enter a Nolle Prosequi the Respondent has acted in a

manner that is oppressive, capricious and in derogation to the applicant’s right to a

fair trial and equal treatment before law or otherwise against public policy.

5. Whether having refused to utilize section 87 (b) of the Criminal Procedure

Code to bring the proceedings to an end, the Attorney – General has acted

mala fides with the obvious intention of preferring fresh charges and hence

subjecting the applicant to the agony of a fresh trial.

6. Whether a Nolle Prosequi signed by the Director of Public Prosecutions

is a valid exercise of the Attorney – General’s powers under section 26 (3) of the

Constitution.

7. Whether in all the circumstances of this case the Attorney – General’s

attempt to enter Nolle Prosequi should be rejected.

On 23.11.05 the respondent filed his skeleton arguments of the same date in

support of his case and on 12.05.08 the applicant filed his counter-skeleton arguments

dated 09.05.08.

Hearing of the Constitutional Reference took place before us on 21.05.08

whereat the applicant was represented by learned counsel, Mr J.K. Njuguna while the

respondent was represented by learned counsel, Mr J. Kaigai. Both counsel adopted

their skeleton arguments and gave such highlights as they deemed appropriate.

The applicant’s counsel’s submissions in support of the application may be

summarized as under. The applicant was arraigned on 13.06.02 on two criminal

charges:-

1. Malicious damage to property, contrary to section 339 (1) of the Penal

Code, Cap.63. Under this section an accused, if convicted, is liable to

imprisonment for 5 years.

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2. Stealing, contrary to section 275 of the Penal Code. Under this section an

accused, if convicted, is liable to imprisonment to 3 years.

The value of the subject matter of count 1 was given as Kshs.50,000/= while

the value of the subject matter of count 2 was given as Kshs.150,000/=. The

prosecution called 5 witnesses and closed its case. The applicant herein who was the

accused in the then Kibera Senior Principal Magistrate Court submitted that he had

no case to answer but the court ruled that he had a case to answer. The applicant

indicated he would call 4 defence witnesses to testify on his behalf. He started giving

evidence and called 2 witnesses, i.e. himself and his brother, Benson Wathome

Wainaina. In the course of the defence hearing, the accused/applicant fell ill. On

24.09.03, during a normal mention, the prosecutor told the court that he had been

instructed to present a Nolle Prosequi. Applicant’s counsel opposed entry of the Nolle

Prosequi relying on High Court Criminal Application No.39 of 2000, Crispus Karanja

Njogu -vs- Attorney – General, which was filed under section 67 (1) of the

Constitution. With regard to the reason given by the respondent that he chose to

enter a Nolle Prosequi because the proceedings had been conducted by an unqualified

person, contrary to the then section 85(2) of the Criminal Procedure Code, applicant’s

counsel pointed out that the applicant as the accused attended the trial court 31 times

in a trial lasting 15 months (he actually phyisically attended 26 court sessions while

on 3 other sessions his advocate represented him); that if the prosecutor was

unqualified, the mistake was the respondent’s and should not be visited on the

applicant; that the applicant as the accused had been placed on his defence and that,

therefore, section 87 (b) of the Criminal Procedure Code was the proper section to use

under which the applicant would have been entitled to an acquittal.

It was applicant’s counsel’s contention that the respondent’s intention in not

using section 87 (b) but using section 82 to enter a Nolle Prosequi instead must have

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been to preserve the right to present fresh charges against the applicant. Applicant’s

counsel drew attention to the fact that the respondent is the appointing authority for

public prosecutors and that his appointment of unqualified prosecutors had previously

been castigated by the Court of Appeal in Criminal Appeal No.67 of 2002, Roy

Richard Elirema & Vincent Joseph Kessy -vs- Republic. Applicant’s counsel

submitted that the respondent cannot benefit from his own fault by using a Nolle

Prosequi and his attempt to enter a Nolle Prosequi in the present applicant’s lower

court case is not a fair exercise of the applicant’s power to enter a Nolle Prosequi.

Applicant’s counsel pointed out that the subject offences are said to have been

committed on 08.04.02, that if the Nolle Prosequi is permitted, it would leave the

door open for the respondent to prefer fresh charges against the applicant and that the

applicant would be denied the right to a fair trial in that whatever defence he might

have had may no longer be in existence. Applicant’s counsel said that tracing

witnesses and lapse of memory may stand in the way of the defence case. Reacting to

a criticism from respondent’s counsel, applicant’s counsel pointed out that the present

Constitutional Reference was not made under section 84 but under section 67 (1) of

the Constitution and that the rules cited by respondent’s counsel are not applicable to

a Constitutional Reference under section 67 (1) of the Constitution.

With regard to prayer 6 in the Constitutional Reference challenging the

validity of a Nolle Prosequi signed by the Dirctor of Public Prosecutions (DPP),

applicant’s counsel said he was no longer questioning the DPP’s authority to enter a

Nolle Prosequi on behalf of the respondent in view of gazettement of the office of the

DPP vide Legal Notice No.71 of 2005 which was backdated.

Applicant’s counsel finally submitted that the intended Nolle Prosequi is

improper and urged this court to reject the same.

On the other hand, respondent’s counsel opposed the application and said he

adopted the skeleton arguments filed for the respondent on 23.11.05. He noted and

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stressed that the procedure adopted for bringing the Constitutional Reference was

captioned as a revision and pointed out that revisional matters have their procedure

set out in sections

362 - 367 of the Criminal Procedure Code and not under section 67 (1) of the

Constitution. He submitted that the procedure adopted is improper. He also

contended that the reasons given by the respondent for invoking the procedure of

Nolle Prosequi are lawful, proper and genuine and that the court should accept them

as validating the intended Nolle Prosequi. He added that junior officers had been

prosecuting for decades until the Elirema case (supra) brought the illegality of the

practice into focus and that the respondent moved with speed to remedy the

situation. We interpose here to observe that although respondent’s counsel did not

elaborate on his allusion to the respondent remedying the situation, Act No.7 of 2007

deleted from section 85 (2) of the Criminal Procedure Code the requirement that the

person the respondent appointed as a public prosecutor from the public service had to

be a person of not below the rank of Assistant Inspector of Police. Subsequent to the

amendment, any person the respondent deems fit to appoint from the public service

as a public prosecutor no longer suffers a disability on account of being a police officer

below the rank of Assistant Inspector of Police. In respondent’s counsel’s view, the

trial of the applicant herein as the accused in the lower court case is a nullity,

notwithstanding the stage the trial proceedings had reached and that the Nolle

Prosequi cannot be successfully resisted. Respondent’s counsel added that while it is

easy to blame the respondent herein, the courts also allowed unqualified persons to

prosecute and that they contributed to the wrong complained of by the applicant.

As regards the prospect of a re-trial of the applicant herein, respondent’s

counsel pointed out that once the Nolle Prosequi is entered, the matter will be taken

back to the respondent who will decide whether to prosecute or not. In respondent’s

counsel’s view, this is a relatively new matter and that the fear of the respondent

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laying dangerous cards under the table is speculative as the entry of a Nolle Prosequi

does not necessarily lead to a re-trial. Respondent’s counsel pointed out that public

policy dictates that all trials should be conducted according to law, that the

complainant also deserves justice and that his or her interests should likewise be

considered. Respondent’s counsel asked this court to take into account all factors and

find that the intended Nolle Prosequi is proper.

Regarding the authorities applicant’s counsel referred to, respondent’s counsel

maintained that except for Elirema’s case, the others are distinguishable. He said the

other cases were lawful whereas Elirema’s case was a nullity.

Respondent’s counsel urged this court to disallow the applicant’s application

and allow the respondent to tender the Nolle Prosequi.

In reply, applicant’s counsel pointed out that section 85 of the Criminal

Procedure Code which gives the respondent power to delegate prosecutorial power

does not anywhere mention the courts as sharing that power and that, therefore, the

respondent’s counsel’s insinuation that the courts have contributed to the morass

arising from unqualified persons being appointed public prosecutors misses the point

of the applicant’s complaint in that regard. Applicant’s counsel pointed out that the

courts have no interest in the matter at hand and that the court cannot inquire on its

own about competence of those who appear before it, unless the matter is brought to

the court’s attention. In applicant’s counsel’s view, the respondent should apologise

to those who may have gone to prison unlawfully. Applicant’s counsel urged this

court not to subject the applicant to the mercy of the erring respondent Attorney –

General but protect the applicant from possible abuse of the prosecution office in the

event of a re-trial. As regards the claim in the subject before the Kibera court,

applicant’s counsel noted that the said case is based on quantifiable damages and that

the complainant can sue for damages.

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Applicant’s counsel reiterated that the respondent made the mistake of

appointing an unqualified prosecutor who undertook prosecution of this case in the

lower court; that the respondent must balance the interests of the State and the

interests of the individual as both are subjects that the respondent is to blame for the

error of appointing an unqualified public prosecutor; and that the error should not be

visited on the applicant.

We have given due consideration to the rival arguments of the parties,

including the authorities cited by their advocates.

It is our intention to address the issues raised before us as far as possible in the

order of their presentation by the parties. However, we shall deal with two

preliminary matters straightaway and get them out of the way first. The first is to

examine the effect of partly entitling the present application as a revision case on the

validity of the application. The second relates to prayer 6 which essentially questions

the validity of a Nolle Prosequi signed by the Director of Public Prosecutions.

Description of the application before court

We note that it is counsel for the applicant who on 29.09.03 asked the trial

Magistrate in the Kibera criminal case to make a reference to the High Court under

the Constitution. The prosecutor asked for a week to respond to the objection raised

to the proposed entry of the Nolle Prosequi. The matter was re-scheduled for

13.10.03. At this latter session, counsel for the accused, who is now the applicant

before us, framed 5 broad questions he wished to be determined by the High Court.

The questions essentially questioned the propriety of the Attorney-General’s choice

of using a Nolle Prosequi under section 82 of the Criminal Procedure Code instead of

using section 87 (b) of the same Code. Section 67 of the Constitution provides, inter

alia, as follows:

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’67. (1) Where a question as to the interpretation of this

Constitution arises in proceedings in a subordinate court and the

court is of the opinion that the question involves a substantial

question of law, the court may, and shall if a party to the

proceedings so requests, refer the question to the High Court.’

The learned trial Magistrate held, correctly, that she had no choice but to refer

the matter to the High Court for determination since it is the defence, i.e. the

accused, that had applied for the reference. The trial Magistrate then referred the

matter to the High Court for determination and in the meantime stayed the

proceedings before her pending the reference and framing by the defence of the

questions to be determined by the High Court. On 06.10.05 the applicant herein filed

the 7 Constitutional Questions listed at the start of this Ruling for determination by

the High Court. No issue of revision features in the Constitutional Questions framed,

neither is the issue of revision raised in the rest of the title of the matter before the

High Court. Why the applicant deemed it fit to caption this matter as a Criminal

Revision comes as a puzzle to us.

In our view, respondent’s counsel was right in criticizing the caption.

Revision has a specialized meaning in Kenya’s criminal law and the procedure for

invoking revision is laid down in sections 362 – 367 of the Criminal Procedure Code.

None of the factors pertaining to revision exists in the matter at hand and the

captioning of the matter before us a Criminal Revision is a misnomer and has no place

in this matter. This is a Constitutional Reference, pure and simple, as correctly

described in the rest of the title to the matter before us as well as in the arguments

advanced in support thereof. Indeed the applicant has not anywhere in the questions

he framed or in the arguments he advanced in support of his application alluded to

any revision.

Respondent’s counsel urged us to find the above misdescription fatal to the

Constitutional Reference before us. The matter before us raises fundamental issues

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regarding the control by the Republic of criminal prosecutions through the procedure

of Nolle Prosequi. We would rather address the fundamental issues than be bogged

down by the aforesaid misdescription. We hold that the misdescription is a curable

irregularity, that it is not fatal to the matter before us and deem the aforesaid matter

or proceeding before us not as a CRIMINAL REVISION but as a CONSTITUTIONAL

REFERENCE and shall treat it as the latter henceforth.

Validity of a Nolle Prosequi signed by the Director of Public Prosecutions (Question

6)

Section 47 of the Interpretation and General Provisions Act provides as

follows:

’47. (1) Whenever the title of a public officer is changed, the

President may, by notice in the Gazette, declare that, for the

purposes of all written laws, the title of the officer shall be

replaced by the new title specified in the notice.

(2) Where a notice is published under subsection (1), a written

law containing a reference to the title which is changed shall be

deemed to have been amended by substituting for the reference a

reference to the new title.’

In exercise of the powers conferred on him by the above section, the President did on

30.06.05 issue Legal Notice No.71 published in Kenya Gazette Supplement No.49 of

01.07.05 declaring that the title ‘Deputy Public prosecutor’ shall be replaced by the

title 'Director of Public Prosecutions’ and that the Legal Notice would have effect

from 05.12.96. In view of the foregoing, applicant’s counsel informed us at the

hearing of the present application on 21.05.08 that the applicant was withdrawing

Constitutional Question 6. We endorse the withdrawal and mark Constitutional

Question 6 as duly withdrawn.

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Whether respondent should give reasons for attempting/seeking to enter a

Nolle Prosequi (Question 1)

Before addressing this specific question, we consider it helpful to trace the parentage

of the respondent Attorney -

General’s powers over criminal proceedings in Kenya. Section 26 of the Constitution

provides, inter alia, as follows:

’26. (3) The Attorney – General shall have power in any case

in which he considers it desirable so to do –

(a) to institute and undertake criminal proceedings against any

person before any court (other than a court – martial) in respect

of any offence alleged to have been committed by that person;

(b) to take over and continue any such criminal proceedings that

have been instituted or undertaken by another person or

authority; and

(c) to discontinue at any stage before judgment is delivered any

such criminal proceedings instituted or undertaken by himself or

another person or authority.’

These are very wide powers indeed. The Constitution does not enumerate the factors

that would entitle the Attorney – General to consider it desirable to initiate criminal

proceedings or to discontinue such proceedings. He seems to have a wide

discretionary latitude in the matter. This does not imply that the Attorney – General

has absolute and unfettered discretion since it is a legal expectation in civilized

systems of justice that any person exercising a discretion on a matter dealing with

public rights of a citizen must exercise that discretion judicially, fairly and properly,

taking into account all relevant considerations and excluding irrelevant ones. As was

correctly observed by Lord Greene (M.R.) in Associated Provincial Picture Houses

Limited -vs- Wednesbury Corporation [1947] I K.B. 223, the courts would not

interfere with the exercise of discretionary powers unless the discretion was exercised

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in bad faith, dishonestly, unreasonably or in regard to extraneous matters or if the

authority concerned failed to take into account relevant matters. The court in the

above case, inter alia, held that:

‘In considering whether the authority having so unlimited a

power has acted unreasonably, the court is only entitled to

investigate the action of the authority with a view to seeing if it

has taken into account any matter that ought not to be or

disregarded matters that ought to be taken into account. The

court cannot interfere as an appellate authority to override a

decision of such an authority, but only as a judicial authority

concerned to see whether it (the authority) has contravened the

law by acting in excess of its power.’

We associate ourselves with the above holding and, arising therefrom, wish to

observe that for this court to be able to make an informed decision whether the

respondent Attorney – General took into account only relevant matters or took into

account irrelevant matters in his decision to want to enter the Nolle Prosequi, this

court needs to know the reason or reasons for the intended Nolle Prosequi. It seems

that in the present case the respondent appreciated the court’s dilemma if it were to

be asked to decide Question 1 without knowing what prompted the intended Nolle

Prosequi, hence the respondent’s disclosure at skeleton argument 4 that:

‘The said Nolle Prosequi is being entered because the trial was

conducted by unqualified person c/s 85 (2) C.P.C. Cap.75 Laws of

Kenya.’

The respondent Attorney – General adopted a pro-active approach and disclosed his

reason for the intended Nolle Prosequi before we made a pronouncement on

Question 1, which obviates the need for us to answer the question formally. Since the

reason for the intended Nolle Prosequi has been disclosed to us, we now proceed to

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consider whether it is a valid reason as we were called upon to pronounce vide

Question 2.

Whether the fact of the prosecution having been undertaken by an

unqualified person is a valid reason constituting a proper exercise of the powers to

enter a Nolle Prosequi donated to the respondent Attorney – General by section 26

(3) of the Constitution and section 82 of the Criminal procedure Code (Question 2)

Elirema’s appeal (supra) was decided by the Court of Appeal on 05.08.03. It did not

introduce any novel point of law but merely pronounced what had been the law all

along although it had not been observed. The criminal charges against the applicant

in the present case were preferred against him in June, 2002. It appears to have

dawned on the respondent Attorney - General herein who must have represented the

respondent Republic in Elirema’s appeal that the Court of Appeal decision in

Elirema’s appeal dealt a deadly blow on prosecutions undertaken by unqualified

persons and that proceeding with the present applicant’s criminal trial, which was

partly conducted by an unqualified person after 05.08.03 would be an exercise in

futility. Therefore the respondent’s decision announced on 24.09.03 to terminate the

present applicant’s trial on the basis of the decision in Elirema’s appeal is based on a

valid reason. What is highly debatable is whether that reason constitutes a proper

ground for the respondent Attorney – General to terminate the criminal proceedings

by exercising the powers donated to him by section 26 (3) of the Constitution and

section 82 of the Criminal Procedure Code to enter a Nolle Prosequi, and to that we

now turn.

We have already reproduced hereinabove the text of section 26 (3) of the

Constitution.

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As for section 82 of the Criminal Procedure Code, which falls immediately

after the heading ‘CONTROL BY REPUBLIC IN CRIMINAL PROCEEDINGS’, the

relevant part is subsection (1) which is in the following terms:

’82. (1) In any criminal case and at any stage thereof before

verdict or judgment, as the case may be, the Attorney – General

may enter a Nolle Prosequi, either by stating in court or by

informing the court in writing that the Republic intends that the

proceedings shall not continue, and thereupon the accused shall

be at once discharged in respect of the charge for which the nolle

prosequi is entered, and if he has been committed to prison shall

be released, or if on bail his recognizanes shall be discharged; but

the discharge of an accused person shall not operate as a bar to

subsequent proceedings against him on account of the same facts.’

It is to be recalled that one of the complaints of the applicant herein is that the

respondent should have utilized section 87 (b) of the Criminal Procedure Code to

discontinue the criminal proceedings in Kibera Chief Magistrate’s Court Criminal

Case No.4445 of 2002, which would have resulted in the acquittal of the accused in

that case, who is the applicant in the application now before us. For the record,

Section 87, which has two subsections, is reproduced below:

’87. In a trial before a subordinate court a public prosecutor may,

with the consent of the court or on the instructions of the

Attorney-General, at any time before judgment is pronounced,

withdraw from the prosecution of any person and upon

withdrawal |

(a) if it is made before the accused person is called upon to make his

defence, he shall be discharged, but discharge of an accused

person shall not operate as a bar to subsequent proceedings

against him on account of the same facts;

(b) if it is made after the accused person is called upon to make his

defence, he shall be acquitted.’

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As we understand it, the intended entry of a Nolle Prosequi was objected to on the

grounds:-

(a) That it would deny the accused in the lower court, who is the applicant in

the application before the High Court, a fair trial in case of a re-trial in that

whatever defence he might have had may no longer be in existence as

tracing of witnesses may stand in the accused’s/applicant’s way.

(b) That lapse of memory on the part of available witnesses may also stand in

the way.

For the above reasons, applicant’s counsel submitted that the entry of a Nolle

Prosequi by the respondent Attorney - General in the present case would not be a fair

exercise of his power to enter a Nolle Prosequi and that he should not be permitted to

do so.

Regarding the prospect of a re-trial if the intended Nolle Prosequi is entered,

respondent’s counsel stated that once the Nolle Prosequi is entered the matter will be

taken back to the respondent who will decide whether to prosecute or not. On this

point we wish to make the following two observations: One is that once the Nolle

Prosequi is entered, it will then be open to the respondent to charge the applicant

afresh as the respondent is entitled so to do, which is the very prospect the applicant

says he finds agonizing and prejudicial to him. The other observation relates to the

possibility that the respondent may quietly decide not to take any further action

against the applicant herein. In the latter scenario, the applicant would remain in the

dark as to whether to put the prospect of criminal charges arising out of the subject

property dispute behind him, or to continue having nightmares over the prospect of

such charges being sprung upon him again.

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It is to be recalled in the above regard that the offences with which the

applicant was charged before the Kibera court are said to have been committed on

08.04.02. The applicant was charged therewith before court on 13.06.02. He denied

the charges. The prosecution called 5 witnesses at the end of whose evidence

applicant’s counsel submitted there was no case for the accused, who is now the

applicant before this court, to answer. The trial court ruled that the accused had a

case to answer. Thereafter the accused told the trial court that he would call 4

defence witnesses. He himself gave evidence on oath first as D.W.1, followed by his

brother, Benson Wathome Wainaina as D.W.2. At the conclusion of D.W.2’s

evidence there was an application for adjournment, which the court granted. The

trial court also invoked section 150 of the Criminal Procedure Code, which empowers

the court at any stage of a trial to summon or call any person as a witness if it appears

that the evidence of such witness is essential to the just decision of the case, and

directed that a surveyor appears at the next hearing and produce a report relating to

boundaries of Plot No. Dagoretti/Riruta/4621 (suit property) and the adjacent road

reserve; and also relating to the position of the structures along the said boundaries.

Eventually a Government surveyor, one Martin Kavita Wambua appeared and

gave evidence before the trial court on 27.08.03 to the effect that the structure

complained about was not within the suit land but within a road reserve; and that he

prepared a plan of the subject plot, the adjacent plot and the road reserve showing the

structure in question and the subject plot. The surveyor did not, however, seem to

have a formal report. The trial court also found maps submitted to the court to be

misleading, so the court adjourned the hearing to enable the surveyor prepare his

report. Further hearing was fixed for 09.09.03. The accused did not attend court on

09.09.03 as he was reported to have fallen ill the previous night and got admitted in

hospital. The surveyor was reported to be in court with his report on 09.09.03 but the

court, correctly, declined to hear him further in the accused’s absence. The further

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hearing was re-scheduled for 23.09.03 when the accused appeared without his

advocate. The prosecutor told the court that he wished to make an application but

the court, again correctly, directed that the application be made in the accused’s

advocate’s presence next day, i.e. 24.09.03. And on 24.09.03 the prosecutor sought to

present the Nolle Prosequi which provoked the Constitutional Reference subject

matter of this Ruling.

One of the applicant’s complaints regarding the prospect of the respondent

charging him afresh if the Nolle Prosequi is entered is that he (applicant) would be

denied a fair trial as whatever defence he might have had may no longer be in

existence. The court does not know so far what evidence the remaining defence

witnesses are going to give or what weight such evidence may lend to the accused’s

defence. The court has no way of knowing the nature of the remaining defence

evidence in advance until the time of its presentation by the accused before the trial

court. This is a right acknowledged on 13.06.08 by the Court of Appeal in Criminal

Appeal No. 116 of 2007, Thomas Patrick Gilbert Cholmondeley –vs- Republic as

belonging to an accused.

An example of a prejudicial disadvantage the accused/applicant in the present

case might face in the event of being charged afresh with the subject offences may be

found in the undermentioned scenario. In his existing testimony before the Kibera

court, the accused/applicant said the dispute between him and the complainant,

Josephine Njoki Gitu went before the Chief of Riruta Sub-Location, a Mr. Mungai

who ruled that the accused was entitled to collect rent from the complainant (in

respect of the suit property) and that the said Mungai subsequently stopped being a

chief. It is not known at this stage of the accused’s case if a written record of the

proceedings before the chief’s office was kept. If no written record was kept and if

the chief heard the parties alone and the accused wishes to place some reliance on

those proceedings, the former chief may be a material witness for the defence. And if

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the said former chief is no longer available, the accused’s/applicant’s defence may well

be prejudiced.

The subject premises on the suit land are said to have been made of timber and

corrugated iron sheets on the sides and on top, i.e. a temporary structure. The current

trial Magistrate visited the locus in quo on 01.04.03 at the invitation of defence

counsel ‘to get a clear view of the scene .…’ Should the need for such a visit be

desired in the event of a re-trial, the implication would be that the temporary

structure, if it still exists, would have to be preserved until the second visit is made. It

is common knowledge that the courts are heavily loaded with litigation, both civil

and criminal. Preserving the temporary structure might mean halting permanent

development on or around the suit land. Is that desirable, especially for property

offences where the value of the subject property totals only Kshs.200,000/=? Of

course if the suit property has not been preserved, the opportunity to view and make

a visual appreciation of the scene is lost. In the latter regard, note should be taken

that the current trial Magistrate’s judicial notes on what she observed at the scene

during her visit there are instructive. The notes appear at page 35 of the typed trial

proceedings as follows:

‘Court: The court has visited the scene. The destroyed structure

is not visible as the debris is lying in a heap and iron sheets stored

in an adjacent store. The complainant’s office still stands intact.

The court is shown the boundary of the plot which accused

claims to be his property. The prosecution claims that the

destroyed/demolished store was not on the accused plot, a claim

the accused denies. A sketch plan of the plot in question and the

location of the relevant building material has been drawn by the

court clerk – Kamau for ease of reference.’ Such observations by the trial Magistrate are unlikely to be edifying to the

prosecution, but our main point in reproducing them is that such a vivid picture as

the trial Magistrate tried to give of the scene may be difficult to capture accurately

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without actually viewing the scene as it was during the current trial Magistrate’s visit

there. Yet if the current proceedings, in Kibera Chief Magistrate’s Court Criminal

Case No. 4445 of 2002 having been partly prosecuted by Police Corporal Kilimo who

by virtue of the then section 85(2) of the Criminal Procedure Code as interpreted by

the Court of Appeal in Elirema’s appeal was unqualified to conduct public

prosecutions, are continued to conclusion, such continuation would amount to an

exercise in futility in that the proceedings are bound to be declared a nullity on

appeal, and with such declaration the vivid and highly descriptive judicial notes made

of the scene by the current trial Magistrate on 01.04.03 would disappear into oblivion.

Termination of the criminal proceedings seems in this case to be the logical step to

take. The big question is whether using the termination procedure of Nolle Prosequi

is the proper course.

The undermentioned summarized chronology of events relating to this case

brings into sharp focus the fundamental nature of the questions raised by the case at

hand. The accused’s/applicant’s unconcluded trial lasted from 13.06.02 when the

applicant was arraigned before the trial court up to 24.09.03 when the prosecution

attempted to present to the trial court the Nolle Prosequi subject matter of this

Ruling. The unconcluded trial, therefore, lasted 15 months before the attempt to

enter a Nolle Prosequi was made. There were 29 court sessions in the trial court upto

the time the court made a ruling referring the matter to the High Court for

interpretation of the constitutional issues raised. The accused/applicant physically

attend 26 of those sessions while he was only represented by his advocate at the other

3 court sessions. The trial Magistrate’s ruling vide which she referred the matter to

the High Court for interpretation of the constitutional issues raised by the applicant

was delivered on 16.10.03, i.e. some 16 months after the accused’s/applicant’s initial

arraignment before the trial court. The final version of the Constitutional Questions,

numbering 7, was filed by the applicant’s advocates on 06.10.05, i.e some 31/3 years

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since the accused’s/applicant’s arraignment. Hearing of the Constitutional Reference

eventually took place before the High Court on 21.05.08, i.e. about 6 years since the

accused’s/applicant’s arraignment. If the criminal proceedings are terminated

through the subject Nolle Prosequi, that would open the way for the 6-year old

charges to be brought against the accused/applicant afresh.

Section 77 of the Constitution, which falls under Chapter V of the

Constitution providing for protection of fundamental rights and freedoms of the

individual, provides, inter alia, that if a person is charged with a criminal offence:-

i. He shall be presumed innocent until he is proved or has pleaded

guilty.

ii. The case shall be afforded a fair hearing within a reasonable time by

an independent and impartial court established by law.

The offences with which the accused/applicant was charged are said to have been

committed by him on 08.04.02, i.e. over 6 years ago. As already recorded, he denied

the charges. The offences are property – related and the properties in question were

assigned a total value of Kshs.200,000/=. The procedure of entering a Nolle Prosequi

the respondent Attorney-General has chosen to use enables him to charge the

accused/applicant afresh with the same offences after entering the Nolle Prosequi.

That would be after the charges have been hanging over the head of the

accused/applicant for some 6 years while he challenged them through the judicial

process.

A re-trial after the aforesaid lapse of time would be in violation of the

accused’s/applicant’s constitutional right to a hearing over his case within a

reasonable time. Respondent’s counsel reminded us that the complaint’s interests also

deserve to be considered. We agree with the principle but hasten to add that its

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application has of necessity to be coloured by the facts of a given case. In the present

case, there is a constitutional presumption of innocence in favour of the

accused/applicant as well as constitutional protection of his right to a hearing of his

case within a reasonable time. The prospect of a re-trial of the accused/applicant

herein after 6 years of his suspense over the existing charges would in our view be out

of tune with his right to an expeditious trial, which would dilute his right to a fair

trial.

We are aware that the respondent Attorney-General, inter alia, has power to

initiate criminal proceedings and discontinue them and that in exercising such power

he shall, by virtue of section 26(8) of the Constitution, not be subject to the direction

or control of any other person or authority. That power per se vested in him by the

Constitution is not being challenged. What is being questioned is his intended

exercise of the power to discontinue the criminal proceedings in the present case

using the procedure of Nolle Prosequi which the circumstances of the case indicate

would result in oppression of the accused/applicant by using the court process. Such

occurrence would amount to an abuse of the process of the court. In this regard,

attention is drawn to section 123(8) of the Constitution which provides:

‘123. (8) No provision of this Constitution that a person or

authority shall not be subject to the direction or control of any

other person or authority in the exercise of any functions under

this Constitution shall be construed as precluding a court from

exercising jurisdiction in relation to any question whether that

person or authority has exercised those functions in accordance

with this Constitution or any other law.’

Under the above constitutional provision, the court is clearly entitled to inquire into

the propriety or otherwise of the intended utilization of a Nolle Prosequi in a manner

which the facts of this case indicate would violate the accused’s/applicant’s

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constitutionally protected fundamental right to an expeditious and fair trial. Our

foregoing inquiry leads us to the firm conclusion that the procedure of Nolle Prosequi

as a means of terminating the criminal proceedings against the accused/applicant is

inappropriate in this case.

The upshot is that we answer the first limb of Question 2 by finding that the

reason for the intended termination of the criminal proceedings against the

accused/applicant is a valid reason. However, we answer the second limb of the same

Questions 2 by finding that the aforesaid given reason does not constitute a proper

exercise of the powers of the respondent Attorney-General donated by section 26(3)

of the Constitution and section 82 of the Criminal Procedure Code to enter a Nolle

Prosequi.

Whether in the circumstances of this case and considering the stage at which

the proceedings are, a Nolle Prosequi does or does not constitute an abuse of due

process (Question 3).

For the reasons advanced during our consideration of Question 2, we answer

Question 3 by finding that the entry of the intended Nolle Prosequi would amount to

an abuse of the process of the court.

Whether in seeking to enter a Nolle Prosequi the respondent has acted in a

manner that is oppressive, capricious and in derogation of the applicant’s right to a

fair trial and equal treatment before the law or otherwise against public policy

(Question 4)

Here also the material we analysed while considering Question 2 provides useful

background material in answering this Question 4. Additionally, we wish to

comment on the following remarks by respondent’s counsel while addressing us.

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When blame was laid by applicant’s counsel at the door of the respondent for having

let or suffered an unqualified person to undertake the prosecution of the

accused/applicant herein, respondent’s counsel submitted that while it is easy to

blame the respondent, the courts also did, prior to the Court of Appeal

pronouncement of illegality of prosecutions undertaken by unqualified persons,

contribute to the wrong complained of by the applicant. In this connection, we draw

attention to the verdict of the Court of Appeal in Elirema’s appeal on this point found

in the last paragraph at page 12 of their judgment, to wit:

‘The mistakes which have led to our quashing the convictions

were entirely of the prosecution’s making.’ [underlining added.]

Counsel for the applicant in the present case aptly elaborated on the above

verdict by the Court of Appeal when he pointed out that:

‘… section 85 of the Criminal Procedure Code which gives the

respondent power to delegate prosecutorial power does not

anywhere mention the courts as sharing that power and that,

therefore, the respondent’s counsel’s insinuation that the courts

have contributed to the morass arising from unqualified persons

being appointed public prosecutors misses the point of applicant’s

complaint in that regard …. that the courts have no interest in

the matter at hand; that the court cannot inquire on its own

about competence of those who appear before it, unless the

matter is brought to the court’s attention.’

We respectfully endorse the above applicant’s counsel’s observations and

would only add that even in situations where the court may have reason to act suo

motu, the starting point must be availability to the court of information on

incompetence or suspected incompetence of a given prosecutor before the court is put

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on inquiry, otherwise the court would be venturing into the untenable position of

being investigator and judge, contrary to the rules of natural justice.

We answer Question 4 by finding that by seeking to enter a Nolle Prosequi in

the present case, the respondent Attorney-General acted in a manner which is

oppressive to the applicant and in derogation of the applicant’s right to a fair trial and

that the intended Nolle Prosqui would be against public policy.

Whether having refused to utilize section 87(b) of the Criminal Procedure

Code to bring the proceedings to an end, the Attorney-General has acted mala fides

with the obvious intention of preferring fresh charges and hence subjecting the

applicant to the agony of a fresh trial (Question 5).

In this case, the material we utilized in answering Question 2 and Question 4 provides

background material in answer to this question also. We answer Question 5 by

finding that the respondent Attorney-General’s intention in resorting to the

procedure of Nolle Prosequi in this case may have been borne more out of

embarrassment for violating the then section 85(2) of the Criminal Procedure Code,

rather than outright mala fides. As we observed while answering Question 2, the

respondent’s intended Nolle Prosequi could simply be a face-saving device, to

terminate the criminal proceedings and do nothing after that and leave the

accused/applicant in the agony of suspense as to whether he will eventually face the

criminal charges again or not. We have no hesitation in finding even this possible

passive option on the part of the respondent unacceptable and against public policy.

Whether in all the circumstances of this case the Attorney-General’s attempt to enter

a Nolle Prosequi should be rejected (Question 7)

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It should be clear from our above analysis of the material placed before us that we

find no place for the intended Nolle Prosequi in this case and we hold that the said

Nolle Prosequi must be rejected.

Conclusion

In conclusion, we direct the trial court to reject the Nolle Prosequi which was

presented before it on 24.09.03 and let the prosecution elect another but appropriate

mode of handling the case still pending before the trial court. A copy of this Ruling

to be served on the trial court for due compliance therewith.

Orders accordingly.

Delivered at Nairobi this 22nd day of July 2008.

…………………………………

J.G. NYAMU

J U D G E

…………………………………

B.P. KUBO

J U D G E

……………………………………

G. DULU

J U D G E

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